Earlier this month, the North Carolina Medical Board issued the following statement on capital punishment:
The North Carolina Medical Board takes the position that physician participation in capital punishment is a departure from the ethics of the medical profession within the meaning of N.C. Gen. Stat. § 90-14(a)(6). The North Carolina Medical Board adopts and endorses the provisions of AMA Code of Medical Ethics Opinion 2.06 printed below except to the extent that it is inconsistent with North Carolina state law.
The Board recognizes that N.C. Gen. Stat. § 15-190 requires the presence of “the surgeon or physician of the penitentiary” during the execution of condemned inmates. Therefore, the Board will not discipline licensees for merely being “present” during an execution in conformity with N.C. Gen. Stat. § 15-190. However, any physician who engages in any verbal or physical activity, beyond the requirements of N.C. Gen. Stat. § 15-190, that facilitates the execution may be subject to disciplinary action by this Board.
Relevant Provisions of AMA Code of Medical Ethics Opinion 2.06
An individual’s opinion on capital punishment is the personal moral decision of the individual. A physician, as a member of a profession dedicated to preserving life when there is hope of doing so, should not be a participant in a legally authorized execution. Physician participation in execution is defined generally as actions which would fall into one or more of the following categories:
(1) an action which would directly cause the death of the condemned;
(2) an action which would assist, supervise, or contribute to the ability of another individual to directly cause the death of the condemned;
(3) an action which could automatically cause an execution to be carried out on a condemned prisoner.
Physician participation in an execution includes, but is not limited to, the following actions: prescribing or administering tranquilizers and other psychotropic agents and medications that are part of the execution procedure; monitoring vital signs on site or remotely (including monitoring electrocardiograms); attending or observing an execution as a physician; and rendering of technical advice regarding execution.
In the case where the method of execution is lethal injection, the following actions by the physician would also constitute physician participation in execution: selecting injection sites; starting intravenous lines as a port for a lethal injection device; prescribing, preparing, administering, or supervising injection drugs or their doses or types; inspecting, testing, or maintaining lethal injection devices; and consulting with or supervising lethal injection personnel.
The following actions do not constitute physician participation in execution:
(1) testifying as to medical history and diagnoses or mental state as they relate to competence to stand trial, testifying as to relevant medical evidence during trial, testifying as to medical aspects of aggravating or mitigating circumstances during the penalty phase of a capital case, or testifying as to medical diagnoses as they relate to the legal assessment of competence for execution;
(2) certifying death, provided that the condemned has been declared dead by another person;
(3) witnessing an execution in a totally nonprofessional capacity;
(4) witnessing an execution at the specific voluntary request of the condemned person, provided that the physician observes the execution in a nonprofessional capacity; and
(5) relieving the acute suffering of a condemned person while awaiting execution, including providing tranquilizers at the specific voluntary request of the condemned person to help relieve pain or anxiety in anticipation of the execution.
A week later, Judge Donald W. Stephens of the Wake County Superior Court ruled that executions in North Carolina must cease until lawmakers can reconcile the Board’s ruling with North Carolina law. While the statute itself says only that a doctor must be present, in practice doctors do much more. In April, the execution of Willie Brown was allowed to proceed only after the State assured the court that a doctor would monitor his brain waves to ensure that he had been properly anesthetized. The Board’s new policy specifically prohibits the monitoring of vital signs. Citing a 1909 law few knew existed, Judge Stephens put it to Governor Easley and the Council of State to determine how executions will be conducted from now on. The Attorney General’s Office elected not to appeal the decision to the North Carolina Supreme Court.
The Council’s next regularly scheduled meeting is on February 6th, but it’s not clear if the death penalty is even on the agenda. Some Council members have commented on how they plan to approach the question. Insurance Commissioner Jim Long says he doesn’t have enough facts to form an opinion at this point. State Auditor Les Merritt is interested in how much capital punishment costs the State. Labor Commissioner Cherrie Berrie expressed her support of the death penalty and her desire to get executions “back on track.” Lieutenant Governor Beverly Purdue and State Treasurer Richard Moore have both indicated that the issue deserves “consideration.”
Contact information for Council members is available here.
All we know for sure is that a man who thought he would be dead four days ago gets to live a little longer. If the State came up with a judicially-approved procedure tomorrow, the executions of James Edward Thomas and James Adolph Campbell could theoretically proceed on February 2nd and 9th as scheduled. But Marcus Reymond Robinson’s execution date has passed. Attorney General Roy Cooper would have to direct the Secretary of Correction, Theodis Beck, to set a new execution date, which would be between thirty and sixty days distant.
My hope is that the Council will give serious thought to whether the current lethal injection protocol is compatible with the Eighth Amendment, with or without a doctor. I also hope that the General Assembly will take a hard look at the moratorium proposal scheduled to come before it this session. It is time for North Carolina to join the growing number of states that have elected to step away from the gurney and reflect on whether the system is functioning as it should. Whether Marcus Robinson lives for thirty days or a thousand, his death should be marked by the solemnity due to any passing, not by questions about whether his last moments were spent suffering unnecessarily.